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Article

Access_open How Law Manifests Itself in Australian Aboriginal Art

Journal Erasmus Law Review, Issue 3/4 2013
Keywords legal pluralism, native title, reconciliation, indigenous people of Australia, Aboriginal art
Authors Dr. Agnes T.M. Dr. Schreiner
AbstractAuthor's information

    The article How Law Manifests Itself in Australian Aboriginal Art will discuss two events at the Aboriginal Art Museum Utrecht from the perspective of a meeting between two artistic and legal cultures. The first event, on the art and law of the Spinifex people, will prove to be of a private law nature, whilst the second event, on the art and law of the Wik People, will show characteristics of international public law. This legal anthropological contribution may frustrate a pluralistic perspective with regard to the coexistence of Western law and Aboriginal law on the one hand and of Utrecht's Modern Art Museum and the presented Aboriginal Art on the other. It will show instead the self-evidence of art and law presented and their intertwined connection for the Aboriginal or indigenous peoples of Australia.


Dr. Agnes T.M. Dr. Schreiner
Agnes T.M. Schreiner studied Law and is Lecturer on several themes of the General Jurisprudence at the Law Faculty, University of Amsterdam, The Netherlands. Within the Masterprogram European Private law she teaches the course Anthropology of European Private Law. She received her Ph.D. in 1990. She has specialized in a series of subjects: Law & Media, Law & Arts, Law & Rituals, Law & Culture, Law & Semiotics and Law & Social Sciences.
Article

Access_open Imagining the Rule of Law in Nineteenth-Century Britain: Liberal Society and the Dialectic of the Clan

Journal Erasmus Law Review, Issue 3/4 2013
Keywords clan, rule of law, Albert Venn Dicey, Walter Scott, legal memory
Authors Dr. Mark S. Weiner
AbstractAuthor's information

    In this essay, I provide a historical and theoretical framework for understanding the imaginative relation between the liberal rule of law and the kin-based form of socio-legal organization I call ‘the rule of the clan’ – a classic example of law created ‘from below’. Specifically, I believe that a culturalist disciplinary perspective reveals that the modern liberal state and its more centralized rule of law always stand in an ironic, dialectical relation to the rule of the clan as a legal form. Liberal society, that is, nurtures itself through an anti-liberal utopian imaginary. This article provides an intellectual history backdrop for theorizing that dialectical relationship by examining two contrasting ways in which nineteenth-cen‍tu‍ry British intellectuals imagined the rule of law. Following the work of Charles Taylor and, more specifically in the legal field, Paul Kahn, my goal is to depict a social imaginary of modern liberalism that has been neglected within contemporary liberal theory – and, in doing so, pro‍vi‍de a way to appreciate the cultural foundations of liberal legality. The article considers the stories that nineteenth-century British intellectuals told about the relation between the rule of law and the rule of the clan as a way to think about the rule of law today. It thus tacks between three different shores: the world of legal pluralism (the rule of the clan), the world of nineteenth-cen‍tu‍ry British analysis of the rule of the clan and the contemporary relation between culture and modern liberal society.


Dr. Mark S. Weiner
Mark S. Weiner is author of Black Trials: Citizenship from the Beginnings of Slavery to the End of Caste (New York: Alfred A. Knopf, 2004), recipient of the Silver Gavel Award of the American Bar Association, and Americans without Law: The Racial Boundaries of Citizenship (New York: New York University Press, 2006), winner of the President’s Book Award of the Social Science History Association. He received an A.B. in American Studies from Stanford University; a Ph.D. in American Studies from Yale University; and a J.D. from Yale Law School. He blogs at Worlds of Law (www.worldsoflaw.com).
Article

Access_open Unity in Multiplicity: Shared Cultural Understandings on Marital Life in a Damascus Catholic and Muslim Court

Journal Erasmus Law Review, Issue 3/4 2013
Keywords Syria, personal status law, Eastern Catholic law, patriarchal family, marital obligations
Authors Esther Van Eijk Ph.D.
AbstractAuthor's information

    Family relations in Syria are governed by a plurality of personal status laws and courts. This plurality manifests itself on a variety of levels, including statutory, communal and individual. In this article, the author argues that, albeit this plurality, Syrian personal status law is also characterised by the prevalence of shared, gendered norms and views on marital life. Based on fieldwork conducted in a Catholic and a shar’iyya personal status courts in Damascus in 2009, the author examines the shared cultural understandings on marital relationships that were found in these courts, and as laid down – most importantly – in the respective Catholic and Muslim family laws. The article maintains that the patriarchal family model is preserved and reinforced by the various personal status laws and by the various actors which operated in the field of personal status law. Finally, two Catholic case studies are presented and analysed to demonstrate the importance and attachment to patriarchal gender norms in the Catholic first instance court of Damascus.


Esther Van Eijk Ph.D.
Esther Van Eijk is a postdoc researcher at Maastricht University, The Netherlands. She recently defended (September 2013) her Ph.D. thesis entitled ‘Family Law in Syria: A Plurality of Laws, Norms, and Legal Practices’ at Leiden University, the Netherlands. This study is based on her PhD fieldwork (including interviews and participant observation) conducted in March-April 2008, and October 2008-July 2009 in Syria.
Article

Access_open At the Crossroads of National and European Union Law. Experiences of National Judges in a Multi-level Legal Order

Journal Erasmus Law Review, Issue 3/4 2013
Keywords national judges, legal pluralism, application of EU law, legal consciousness, supremacy and direct effect of EU law
Authors Urszula Jaremba Ph.D.
AbstractAuthor's information

    The notion and theory of legal pluralism have been witnessing an increasing interest on part of scholars. The theory that originates from the legal anthropological studies and is one of the major topical streams in the realm of socio-legal studies slowly but steady started to become a point of departure for other disciplines. Unavoidably it has also gained attention from the scholars in the realm of the law of the European Union. It is the aim of the present article to illustrate the legal reality in which the law of the Union and the national laws coexist and intertwine with each other and, subsequently, to provide some insight on the manner national judges personally construct their own understanding of this complex legal architecture and the problems they come across in that respect. In that sense, the present article not only illustrates the new, pluralistic legal environment that came into being with the founding of the Communities, later the European Union, but also adds another dimension to this by presenting selected, empirical data on how national judges in several Member States of the EU individually perceive, adapt to, experience and make sense of this reality of overlapping and intertwining legal orders. Thus, the principal aim of this article is to illustrate how the pluralistic legal system works in the mind of a national judge and to capture the more day-to-day legal reality by showing how the law works on the ground through the lived experiences of national judges.


Urszula Jaremba Ph.D.
Urszula Jaremba, PhD, assistant professor at the Department of European Union Law, School of Law, Erasmus University Rotterdam. I am grateful to the editors of this Special Issue: Prof. Dr. Sanne Taekema and Dr. Wibo van Rossum as well as to the two anonymous reviewers for their useful comments. I am also indebted to Dr. Tobias Nowak for giving me his consent to use the data concerning the Dutch and German judges in this article. This article is mostly based on a doctoral research project that resulted in a doctoral manuscript titled ‘Polish Civil Judges as European Union Law Judges: Knowledge, Experiences and Attitudes’, defended on the 5th of October 2012.

Wibo van Rossum

Sanne Taekema
Article

Access_open Towards Context-Specific Directors' Duties and Enforcement Mechanisms in the Banking Sector?

Journal Erasmus Law Review, Issue 2 2013
Keywords banking sector, directors' duties, financial crisis, context-specific doctrines, public enforcement
Authors Wasima Khan LL.M.
AbstractAuthor's information

    The global financial crisis gives reason to revisit the debate on directors’ duties in corporate law, mainly with regard to the context of banks. This article explores the need, rationale and the potential for the introduction of context-specific directors’ duties and enforcement mechanisms in the banking sector in the Netherlands from a comparative perspective.
    Chiefly, two legal strategies can be derived from the post-crisis developments and calls for legal reforms for the need and rationale to sharpen directors’ duties in the context of the banking sector in order to meet societal demands. The two strategies consist in shifting the scope of directors’ duties (i) towards clients’ interests and (ii) towards the public interest.
    Subsequently, this article explores the potential for context-specific directors’ duties and accompanying enforcement mechanisms. Firstly, it is argued that the current legal framework allows for the judicial development -specific approach. Secondly, such context-specific directors’ duties should be enforced through public-enforcement mechanisms to enhance the accountability of bank directors towards the public interest but currently there are too much barriers for implementation in practice.
    In conclusion, this article argues that there is indeed a need, rationale and potential for context-specific directors’ duties; yet there are several major obstacles for the implementation of accompanying public-enforcement mechanisms. As a result, the introduction of context-specific directors’ duties in the banking sector may as yet entail nothing more than wishful thinking because it will merely end in toothless ambitions if the lack of accompanying enforcement mechanisms remains intact.


Wasima Khan LL.M.
PhD Candidate at the Erasmus School of Law, Erasmus University Rotterdam. The author wishes to express her gratitude for valuable comments on an earlier draft of this article from Prof. Vino Timmerman and Prof. Bastiaan F. Assink at the Erasmus School of Law, Erasmus University Rotterdam, as well as the Journal‘s editors and peer reviewers. Any errors remain those of the author.
Article

Access_open Human Rights Courts Interpreting Sustainable Development: Balancing Individual Rights and the Collective Interest

Journal Erasmus Law Review, Issue 2 2013
Keywords Operationalizing sustainable development, human rights, individual rights/interests, collective rights/interests, human rights courts
Authors Emelie Folkesson MA
AbstractAuthor's information

    This article uses a generally accepted conceptualisation of sustainable development that can be operationalized in a judicial context. It focuses on the individual and collective dimensions of the environmental, economic and social pillars, as well as the consideration of inter-generational and intra-generational equity. Case law from the European, African and American systems is analysed to reveal if the elements of sustainable development have been incorporated in their jurisprudence. The analysis reveals that the human rights bodies have used different interpretative methods, some more progressive than others, in order to incorporate the elements of sustainable development in the scope of their mandate, even if they do not mention the concept as such. The overall conclusion is that sustainable development has been operationalized through human rights courts to a certain extent. Sometimes, however, a purely individualised approach to human rights creates a hurdle to further advance sustainable development. The conclusion creates the impression that sustainable development is not just a concept on paper, but that it in fact can be operationalized, also in other courts and quasi-courts. Moreover, it shows that the institutional structure of human rights courts has been used in other areas than pure human rights protection, which means that other areas of law might make use of it to fill the gap of a non-existing court structure.


Emelie Folkesson MA
PhD Candidate in public international law, Erasmus University Rotterdam. The author would like to thank Prof. Ellen Hey, Prof. Klaus Heine and two anonymous reviewers for their valuable insights and constructive comments on the drafts of this article. The usual disclaimer applies.
Article

Access_open Offer and Acceptance and the Dynamics of Negotiations: Arguments for Contract Theory from Negotiation Studies

Journal Erasmus Law Review, Issue 2 2013
Keywords Contract Formation, Offer and Acceptance, Negotiation, Precontractual, UNIDROIT Principles of International Commercial Contracts
Authors Ekaterina Pannebakker LL.M.
AbstractAuthor's information

    The doctrine of offer and acceptance forms the basis of the rules of contract formation in most western legal systems. However, if parties enter into elaborate negotiations, these rules may become difficult to apply. This paper addresses the application of the doctrine of offer and acceptance to the formation of contract in the context of negotiations. The paper argues that while the doctrine of offer and acceptance is designed to assess the issues related to the substance of the future eventual contract (the substantive constituent of negotiations), these issues overlap within the context of negotiations with the strategic and tactical behaviour of the negotiators (dynamic constituent of negotiations). Analysis of these two constituents can be found in negotiation studies, a field which has developed over the last decades. Using the rules of offer and acceptance of the UNIDROIT Principles of International Commercial Contracts as an example, this paper shows that the demarcation between the substantive and the dynamic constituents of negotiations can be used as the criterion to distinguish between, on the one hand, the documents and conduct forming a contract, and, on the other hand, other precontractual documents and conduct. Furthermore, the paper discusses the possibility of using the structure of negotiation described by negotiation studies as an additional tool in the usual analysis of facts in order to assess the existence of a contract and the moment of contract formation.


Ekaterina Pannebakker LL.M.
PhD candidate, Erasmus School of Law, Erasmus University Rotterdam. I thank Sanne Taekema and Xandra Kramer for their valuable comments on the draft of this article, and the peer reviewers for their suggestions. The usual disclaimer applies.
Artikel

Access_open Through the Looking Glass of Global Constitutionalism and Global Administrative Law

Different Stories About the Crisis in Global Water Governance?

Journal Erasmus Law Review, Issue 1 2013
Keywords global water governance, global constitutionalism, global administrative law, water crisis, integrated water resources management
Authors Mónika Ambrus
AbstractAuthor's information

    In addition to (or sometimes rather than primarily) attributing it to water scarcity, water crisis has been described as a ‘crisis of governance’; with the word ‘crisis’ also indicating that water governance lacks (full) legitimacy. The article undertakes the task to analyse the current status of global water governance (GWG) from the perspective of two competing theories relating to the legitimacy of global governance, namely global constitutionalism (GC) and global administrative law (GAL). Having mapped the current legal framework of GWG from these two perspectives, it is discussed how these theories might shape GWG and how this shaping could contribute to solving the water crisis. In addition, it is also explored whether reading one of the most accepted proposals for legitimising global water governance, the concept of ‘integrated water resources management’ (IWRM), through the lenses of either GC or GAL would have an impact on how this concept is interpreted, and whether it can be a useful mechanism to address the water crisis. The use of two theories analysing the same subject matter provides interesting insights into global water governance and the nature of the water crisis as well as the relationship between these two theories.


Mónika Ambrus
Assistant professor of public international law at the Erasmus School of Law, Erasmus University Rotterdam.
Artikel

Access_open On Fragments and Geometry

The International Legal Order as Metaphor and How It Matters

Journal Erasmus Law Review, Issue 1 2013
Keywords international law, fragmentation, archaeology, Foucault, geometry
Authors Nikolas M. Rajkovic
AbstractAuthor's information

    This article engages the narrative of fragmentation in international law by asserting that legal academics and professionals have failed to probe more deeply into ‘fragmentation’ as a concept and, more specifically, as a spatial metaphor. The contention here is that however central fragmentation has been to analyses of contemporary international law, this notion has been conceptually assumed, ahistorically accepted and philosophically under-examined. The ‘fragment’ metaphor is tied historically to a cartographic rationality – and thus ‘reality’ – of all social space being reducible to a geometric object and, correspondingly, a planimetric map. The purpose of this article is to generate an appreciation among international lawyers that the problem of ‘fragmentation’ is more deeply rooted in epistemology and conceptual history. This requires an explanation of how the conflation of social space with planimetric reduction came to be constructed historically and used politically, and how that model informs representations of legal practices and perceptions of ‘international legal order’ as an inherently absolute and geometric. This implies the need to dig up and expose background assumptions that have been working to precondition a ‘fragmented’ characterization of worldly space. With the metaphor of ‘digging’ in mind, I draw upon Michel Foucault’s ‘archaeology of knowledge’ and, specifically, his assertion that epochal ideas are grounded by layers of ‘obscure knowledge’ that initially seem unrelated to a discourse. In the case of the fragmentation narrative, I argue obscure but key layers can be found in the Cartesian paradigm of space as a geometric object and the modern States’ imperative to assert (geographic) jurisdiction. To support this claim, I attempt to excavate the fragment metaphor by discussing key developments that led to the production and projection of geometric and planimetric reality since the 16th century.


Nikolas M. Rajkovic
Lecturer in International Law at the University of Kent Law School. Contact: n.rajkovic@kent.ac.uk. The research for this article was supported by a Jean Monnet Fellowship from the Global Governance Programme of the Robert Schuman Centre for Advanced Studies, European University Institute. Further support was given for the presentation and discussion of earlier drafts by COST Action IS1003 “International Law between Constitutionalization and Fragmentation”, the Institute for Global Law and Policy of the Harvard Law School, the Kent Law School and the International Studies Association (San Francisco Annual Convention). I am indebted to the helpful feedback of Tanja Aalberts, Katja Freistein, Alexis Galan, Harry Gould, Outi Korhonen, Philipe Liste, Nicholas Onuf, Kerry Rittich, Harm Schepel, Anna Sobczak, Peter Szigeti, Wouter Werner and the two anonymous reviewers.
Artikel

Access_open Revisiting the Humanisation of International Law: Limits and Potential

Obligations Erga Omnes, Hierarchy of Rules and the Principle of Due Diligence as the Basis for Further Humanisation

Journal Erasmus Law Review, Issue 1 2013
Keywords humanisation, constitutionalism, legal positivism, human rights, erga omnes, due diligence, positive obligations, normative hierarchy, proportionality
Authors Dr. Vassilis P. Tzevelekos
AbstractAuthor's information

    The article critically evaluates the theory of the humanisation of international law. First, it argues that despite human rights having impact on (other areas of) international law, this trend has in the past been somewhat inflated. A number of examples are given where human rights have been tested against other objectives pursued by international law, with humanisation revealing its limits and actual dimensions. The second argument consists in identifying and highlighting obligations erga omnes (partes) and the principle of due diligence as two ‘systemic’ tools, that are central to the humanisation of international law. Both these tools form part of modern positive law, but may also make a positive contribution towards the direction of deeper humanisation in international law, having the potential, inter alia, to limit state will, establish occasional material normative hierarchy consisting in conditional priority in the fulfilment of human rights, give a communitarian tone to international law and invite states to be pro-active in the collective protection of their common interests and values. In its conclusions, the article offers a plausible explanation about the paradox it identifies of the limits of the humanisation on the one hand, and its potential for further development on the other. For, it is inherent in international law that the line separating the law from deontology is thin. The process of humanisation needs to be balanced with the other objectives of international law as well as reconciled with the decentralised and sovereignist origins of the pluralistic international legal system.


Dr. Vassilis P. Tzevelekos
Lecturer in Public International Law, University of Hull Law School; Attorney, Athens’ Bar. PhD and M.Res, European University Institute; MA, European Political and Administrative Studies, College of Europe; DEA Droit international public et organisations internationales, Paris 1 Panthéon-Sorbonne; LLB, National and Kapodistrian University of Athens.
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